PHILADELPHIA – Ruling that the Alzheimer’s Institute of America is not the patent-holder for a specific genetic mutation, a federal judge has decided it should have to pay the attorneys fees Avid Radiopharmaceuticals incurred in an infringement lawsuit between the two.

Judge Timothy Savage sided with Avid on March 30 in a ruling that followed a jury verdict against AIA, which sued Avid in 2010 in U.S. District Court for the Eastern District of Pennsylvania.

The lawsuit concerned the Swedish mutation, which is used to model the effects of Alzheimer’s disease for in vitro, in vivo and animal testing.

“On the one hand, applying the exceptional case analysis, AIA should be held responsible for its bad faith and unreasonably bringing an action for infringing a patent that was unenforceable,” Savage wrote.

“On the other hand, given the unusual posture of this case, the defendants should not be rewarded for acts of infringement that may have occurred. Yet, the defendants did incur fees in determining the rightful owner of the invention.

“Therefore, we shall grant the motions but will scrutinize the bills closely in light of our equitable concerns.”

Evidence at a 2012 trial, which was followed by an appeal to the U.S. Court of Appeals for the Third Circuit, showed that AIA’s principal had conspired with inventors John Hardy and Michael Mullan to defraud the University of South Florida and Imperial College in London of their ownership rights to the Swedish mutation.

AIA had agreed not to list Hardy as a co-inventor on the patent application, leaving Mullan as the sole inventor listed. He assigned the patent rights to AIA.

AIA knew when it filed its lawsuit against Avid that it wasn’t the legal owner of the patent, Savage wrote.

“The deception, the planning, the execution of the scheme and the motivation of AIA, (Ronald) Sexton, Mullan and Hardy were hardly common or ordinary,” Savage wrote.

“Indeed, their conduct was rare and beyond common decency. They were motivated by ego and greed.

“Bringing this action was nothing more than a perpetuation of the conspiracy.”

From the Pennsylvania Record: Reach editor John O’Brien at jobrienwv@gmail.com.